Washington, D.C. (Jan. 17, 2018) – Earlier today, the Department of Justice (DOJ) filed notice of its decision not to appeal the release of an extremely limited portion of its Federal Criminal Discovery Blue Book. The portion of the Blue Book that the Court found was not work product was a tiny fraction – what amounts to not much more than a handful of pages – out of a manual that contains at least 265 pages.
The Court denied NACDL’s request for full disclosure because it found, as the government contended in this lawsuit, that virtually the entire manual is work product: strategic guidance for federal prosecutors on how to litigate against defense discovery requests. This is proof that the DOJ misled Congress in 2012 when it said that its Federal Criminal Discovery Blue Book, distributed in 2011 to every federal prosecutor and paralegal, “comprehensively covers the law, policy, and practice of prosecutors’ disclosure obligations.” The DOJ pointed to that manual in the context of explaining that “new rules are not necessary” as “[w]hat is necessary, and what the Department has been vigorously engaged in providing since the Stevens dismissal[,] is enhanced guidance, training, and supervision to ensure that the existing rules and policies are followed.”
The government’s misleading assertion that this manual solved the pervasive problems with non-disclosure of favorable evidence in criminal cases underscores the need for precisely the bipartisan legislation that was under consideration when these statements were made to the Senate committee.
“Make no mistake, NACDL will now redouble its efforts to seek a permanent legislative solution to the government’s persistent failures to comply with their statutory and constitutional discovery obligations,” said NACDL President Rick Jones. “The issue at stake here is no legal technicality. It is a vital protection for all persons accused of a crime by the U.S. government.”
NACDL Executive Director Norman L. Reimer observed, “If the government was not candid with Congress about what is in its instruction manual for prosecutors, how likely is it that it will be forthcoming in providing favorable evidence to the people it prosecutes?”
NACDL is represented in this matter by Kerri L. Ruttenberg, a partner in the Washington, DC, office of the Jones Day law firm, as well as Yaakov M. Roth and Julia Fong Sheketoff, also of Jones Day.
You can read more about the case in previous statements, available here, here, here, here, here, and here. Additional court papers, including briefs, exhibits, among others, are available at: https://www.nacdl.org/BlueBookFOIALitigation/.
More information concerning NACDL's work in the area of discovery reform is available at www.nacdl.org/discoveryreform.
Contacts
Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org for more information.
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.